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A Case Study on the Termination of an Employee at a Dental Practice

A recent court decision in Ontario (Partridge v. Botony Dental Corporation) shed light on the termination of an employee at a dental practice and provides important insights for dentists running their own practice.

Background

The Plaintiff in the case was a dental hygienist by training who became the office manager of a dental practice in Barrie. The Dental Hygienist had no employment agreement in place and had been working at the practice for 7 years. In her last year as office manager she made approximately $70,000.00. The Dental Hygienist had started as a hygienist but had been promoted to Office Manager in 2007 and held that position for three years and four months. The Dental Hygienist left for a maternity leave and when she returned the owner of the practice told her that the position as office manager was no longer available and she would be working as a hygienist. After trying to assert her rights to be reinstated as office manager the owner terminated her.

The Plaintiff alleged that by express or implied terms of the employment agreement (her verbal agreement), her employment could only be terminated on reasonable notice or pay in lieu of notice. She also alleged that the refusal of the owner to reinstate her as office manager was a breach of the Ontario Human Rights Code, RSO 1990 and a breach of the Employment Standards Act, 2000, S.O. 2000 (the “ESA”). Further, she felt that she was terminated as a reprisal which was a contravention of the legislated employment standard. The owner claimed that the Plaintiff was terminated for cause however the court ruled that this defence was not proven.

The principal factors the courts look to in determining reasonable notice in wrongful dismissal cases are (a) character of employment; (b) length of service; (c) age of employee; and (d) availability of similar employment having regard to the employee’s experience, training and qualifications. The plaintiff had held the position of office manager for about 4 years and had worked in total for 7 years, she was 37 years old and finding a similar job was difficult. Looking at all these factors, including the fact that the plaintiff was able to mitigate her damages by finding other employment, the court determined that 12 months was the appropriate notice period to have given her and awarded her $42,517.44.

The court also found that the owner of the practice violated the ESA. The ESA grants employees the right to access unpaid pregnancy and paternal leaves and to have the same job waiting for them when they come back. Since the owner of the practice told her that she could only come back as a hygienist the court ruled that the owner had violated the ESA. The court also found that when the employee had asked to be reinstated as office manager the owner had committed a reprisal against the employee which also violated the ESA.

The Court also found that the owner of the practice had violated the Ontario Human Rights Code by discriminating based on “family status”. Since the employee had parental obligations and the owner had set hours that didn’t allow the employee to meet her parental obligations the court awarded the employee damages in the amount of $20,000.00.

Lessons for Dental Practice Owners:

• When terminating an employee the employee may be eligible for damages at common law in excess of what is statutorily required.

• When an employee leaves on a maternity/paternity leave the dental practice owner must reinstate her/him in the same position (or comparable position) as when she/he left.

• If your employee has parental obligations the dental practice owner must accommodate except where legitimate, justifiable grounds exist for not being able to do so.

Kutner Law LLP has over 35 years of experience in dealing with the dental and medical profession. We would be happy to walk you through all of these questions and any other concerns you may have. Feel free to contact us for a free consultation to determine whether setting up a professional corporation is the right decision for you or for discussing your other legal professional queries.

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